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MULTI AWARD WINNING SCOTTISH LAWYERS

PROFESSOR CLARA PONSATI – EXTRADITION HEARING AT EDINBURGH SHERIFF COURT ON 5th March 2020

Full Statement issued on behalf of Clara Ponsati by her extradition lawyer Aamer Anwar

Professor Ponsati attended Edinburgh Sheriff Court, today for a hearing. As predicted in January, Clara Ponsati became a MEP because of Brexit. Despite Spain’s desperate demands that she should not be free to leave the UK, Clara took her seat at Strasbourg alongside Carles Puigdemont and Toni Comin on the 10th February 2020.

The Spanish Authorities have petitioned the European Parliament to waive the legal immunity held by Clara, Puigdemont and Comin. It is understood that it could be months before the matter is debated. Spain should have withdrawn the warrant against Clara when she became immune, but by asking the European Parliament to remove her immunity they have accepted she has immunity.

Today the Judge agreed to suspend the extradition case of Clara Ponsati, until the European Parliament makes a decision on immunity. A procedural hearing is fixed for the 18th June.
We submitted that our courts should not order Clara to return to Spain to face criminal prosecution as this would be an abuse of process of the EAW system when she has legal immunity.

Post 31st December it may be that EAW no longer applies and we would revert to the old extradition act 1957 making it even harder to extradite Clara. If it is the case that we are no longer Member States, the principle of mutual recognition should not apply.

The question for the court is whether the risk of prejudice to the prospects of fair trial are so grave that no direction of the judge, however careful, could reasonably be expected to remove it. We would submit that the Spanish Supreme Court cannot ensure a fair trial and any trial of Clara Ponsati would be viewed as a ‘political show trial’.

Article 6 of ECHR as incorporated into Scots law by the Human Rights Act 1998 is a fundamental principle of the rule of law, by which our courts ensure that agents of the state do not misuse the courts to oppress citizens of the state, as Spain stands accused of doing.

We have seen the frightening and sinister consequences of the brutal misuse of state power by Spain.

It is submitted the true reason for the warrant is a politically motivated prosecution of Clara Ponsati. What is contained within the warrant does not set out a fair and accurate representation of the events of September and October 2017. It fails to note the injury to thousands of peaceful protesters and fails to note the international condemnation of excessive use of force by the Civil Guard and National Police Officers.

It was suggested by Llarena that the criminality was the signing of Decree 139/17 which called for a referendum despite knowing that the process had been ruled null, that she gave authority to use schools as polling stations, and that this was done in the knowledge that the holding of a referendum would result “in an escalation of violence”.

It is important to note that nowhere is it suggested that Clara was involved in violence, supported it, promoted it or even suggested it.

The offences which Clara has allegedly committed are from a different era, when the King or Queen was sovereign and there was no concept of the modern democratic state. The Lord Advocate argues that the equivalent crime to sedition with which Clara is charged, in Scotland would be the crime of treason.

Specifically Section 2 of the Treason Act 1351 – relying on ‘levying war against the Sovereign in her realm’. We submit you cannot simply look at these laws from the 14th and transpose them onto modern society.

In looking at the terms of the 1351 Act, it was not enacted in a democracy and before a time when the human right of political expression was an accepted basic human right. Freedom of political speech is a core value of our legal system. Without it the rule of law cannot be maintained.

It is difficult to think of any rational argument justifying the criminalisation of the conduct of citizens who wish to argue for a different form of government or simply the right to self-determination.

In terms of Charter of the United Nations s 1(2), the purpose of the United Nations is

“To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”

Self-determination is now recognised as an international legal right. The 1351 Treason Act is wholly out of step for a modern thinking democracy which claims to observe the rule of law.

It is nowhere suggested that Ms. Ponsati joined with others in an armed uprising against the state in an attempt to overthrow it or change its laws. On no view can it be said that the crime that would have been committed by Ms. Ponsati was the ‘levying of war’, an act of treason.

If a politician in Scotland had allowed a referendum to take place, to allow people to give practical expression to their article 10 rights, to demand self-determination, whatever the legality of that referendum, it is utterly inconceivable that they would be charged with the levying of war against a sovereign.

In a true democracy people do not get prosecuted for advocating political change by peaceful and constitutional means, nor can we allow Clara Ponsati to extradited for doing the same in Spain.

The holding of a referendum, even where that referendum does not hold the force of law, is not a criminal act. The requirement for dual criminality is not met in the present case.

Whilst the Court has been provided with a lengthy narrative of past history between those seeking independence in Catalonia and Spain, the warrant has not set out the particulars of the circumstances in which Clara is alleged to have committed the offence with any degree of clarity to allow the Court in Scotland to deal with the matter.

Today is another victory against the abuse of the rule of law by Spain, but we still have a long way to go.

END OF STATEMENT

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